Owen v. Wilson, 76--4

• Decision Date: 21 June 1976
• Docket Number: No. 76--4,76--4
• Citation: 537 S.W.2d 543,260 Ark. 21
• Parties: David A. OWEN and Juanita Owen, Appellants, v. Dr. F. M. WILSON et al., Appellees.
• Court: Arkansas Supreme Court

Page 543

537 S.W.2d 543

260 Ark. 21

David A. OWEN and Juanita Owen, Appellants, v. Dr. F. M. WILSON et al., Appellees.

No. 76--4.

Supreme Court of Arkansas.

June 21, 1976.

McMath, Leatherman & Woods, Little Rock, for appellants.

Cathey, Goodwin & Hamilton, Paragould, for Dr. Henry W. Keisker.

Barrett, Wheatley, Smith & Deacon, and Frierson, Walker, Snellgrove & Laser, Jonesboro, for appellees, Dr. F. M. Wilson and Aetna Casualty & Surety Co.

FOGLEMAN, Justice.

David A. Owen underwent abdominal surgery by Dr. F. M. Wilson, assisted by Dr. Henry S. Keisker, on February 6, 1969, in the operating room at St. Bernard's Hospital in Jonesboro. On June 10, 1975, Owen and his wife filed the complaint in this action against Drs. Wilson and Keisker and employees of the hospital, alleging that the physicians negligently closed the incision made for the operation without removing a surgical instrument they had introduced into his body and that the hospital employees had negligently failed to count the surgical instruments used. The physician defendants and Aetna Casualty & Surety Co. the carrier for the hospital, denied negligence and pleaded the statute of limitations. Ark.Stat.Ann. § 37--205 (Repl.1962). Each of them filed a motion for summary judgment with supporting affidavit. The motions were based upon the statute. The trial court granted these motions and we affirm.

The facts considered were those stated in affidavits by the physicians, the administrator of the hospital and by appellants. Viewed in the light most favorable to appellants, these affidavits showed that:

Dr. F. M. Wilson performed a right hemicolectomy on David A. Owen on February 6, 1969. He was assisted by Dr. Henry W. Keisker. There was no instrument count at the end of the operation before the incision was closed. Appellant had an infection in the area of the surgery and remained in the hospital for 23 days. The infection continued for some four months thereafter. Appellant was seen by Dr. Wilson on nine visits by the patient, the last on January 20, 1970, for routine post-operative care. On the last occasion appellant complained of rectal bleeding. Appellant, not having regained his strength two years after the operation, sought and obtained treatment by a chiropractor between June, 1971 and January 18, 1975. Appellant had diarrhea most of the time for six years following the surgery and on two occasions--April 11, 1973 and October 2, 1973--had emergency treatment prescribed by Dr. G. D. Poole and Dr. Bascom P. Raney, respectively, at St. Bernard's Hospital. Finally appellant went to Dr. Wilson on January 28, 1975, thinking that his condition must have been related to the surgery. When he told Dr. Wilson of his suffering from diarrhea, this physician ordered X-rays, which disclosed a hemostat or surgical clamp in appellant's abdomen. Appellant was told by the doctor that the clamp had been left inside him by mistake at the time of the 1969 surgery. On February 19, 1975, Dr. Buckman of Little Rock removed a six-inch surgical scissors from appellant's abdomen. No X-rays or other procedures which would have disclosed the presence of the surgical instrument had been ordered or taken prior to those taken in January 1975.

Both physicians and the hospital administrator denied that the presence of the surgical instrument was concealed from the patient. Dr. Wilson and Dr. Keisker each stated that he had no knowledge or reason to believe or suspect the presence of the surgical instrument prior to the X-rays Dr. Wilson ordered taken. The hospital administrator stated that no employee of the hospital concealed the presence of the instrument from appellant or anyone else.

The applicable statute, Ark.Stat.Ann. § 37--205 (Repl.1962), reads:

Hereafter all actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanitaria, shall be commenced within two (2) years after the cause of action accrues. The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time.

Appellants rely entirely upon the 'continuing tort' theory to prevent the bar of the statute. Under this theory, it is urged that the 'wrongful act' commences when the surgeon closes an incision without removing a foreign object he has inserted and continues as long as the object remains undetected. Appellants' theory is that there was a continuing invasion of the patient's body by the physician which constituted a continuing tort. Appellants proceed upon the assumption that this court has not heretofore decided whether the 'continuing tort' theory operates to toll the statute of limitations and read Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 as not deciding that question. Appellants properly admit that the theory was advanced in that case. We did reject that theory in Williams, however, when we said that the continuing tort theory best addressed itself to the General Assembly, which has the responsibility for establishing public policy on that issue. Our views on the subject remain unchanged. They were not confined to the particular fact situation there presented. The negligence both here and there took place at the time the physician acted or failed to act. In Williams, it was at the time of reading the X-rays. Here it was at the time of closing the incision without removing the foreign object.

Appellants also argue that even if the statute would operate as a bar to their cause of action, it is unconstitutional and void because it deprives them of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution. They rely in part upon Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 326, where we found Ark.Stat.Ann. § 75--915 (Repl.1957) in violation of § 13, Art. II of the Arkansas Constitution. That statute was considerably different. It...